Should we torture one person to save many? What is fairness? To accompany BBC4's justice season, philosopher Michael Sandel explains why justice is at the heart of contemporary political debate

Nigel Warburton: For me the word justice seems to imply that there is some injustice in the world—it seems to be something like a legal term almost, that you want to set things to rights. Is that how you understand the word?

Michael Sandel: Well the simplest way of understanding justice is giving people what they deserve. This idea goes back to Aristotle. The real difficulty begins with figuring out who deserves what and why.

Broadly speaking I think there are three answers to the question ‘What is justice?’ There’s the utilitarian answer which says justice means maximising happiness. Answer number two, given by Immanuel Kant, which says that justice is a matter of respecting human dignity, certain categorical duties and rights. And the third answer is the answer that Aristotle gave: justice means giving people what they deserve, where what they deserve depends on their virtue and depends on sorting out hard questions about the good life.

NW: Let’s take Bentham and utilitarianism first. Jeremy Bentham is famous as a major proponent of perhaps the most straightforward kind of utilitarianism.

MS: Bentham said we are governed by two sovereign masters: pleasure and pain. So he thought that morality and legislation should all be about maximising the balance of pleasure over pain.

NW: Why is that relevant to questions of justice?

MS: Take this example. Suppose the majority has a very intense dislike of a minority religion and wants to ban it. In principle, follow Bentham. If the majority is big enough and if their hatred of the religious group is strong enough, then the “happiness principle” says the right thing to do is to ban the religion. Or, to take a contemporary example, to ban the wearing of burqas.

If huge majorities dislike seeing women wearing burqas on the street, does that justify banning the wearing of the burqa? It’s true that those who would like to wear it would suffer some unhappiness according to the utilitarian calculus, but it’s outweighed by the greater happiness of the majority. I think that’s an example of what goes wrong with the utilitarian calculus. The problem is precisely its failure to judge the quality and the moral significance of the preferences.

NW: Now going back a bit, Immanuel Kant, writing in the 18th century, had a very different approach to ethics, and presumably to justice too…

MS: Kant rejects the utilitarian idea that morality is a matter of maximising happiness, or for that matter, seeking after any particular set of consequences. For Kant morality means respecting persons as ends in themselves, not treating persons only as means. So from Kant’s point of view, utilitarianism treats persons as mere means to the happiness of the majority or the collective. He thinks that’s wrong. He thinks there are certain categorical duties and rights—and in particular the duty of respecting persons as bearers of dignity—that override utilitarian considerations.

NW: Would Kant and Kantian ethics support a notion of there being human rights that are inviolable in some sense?

MS: Yes, Kant believes human rights are inviolable and they can’t be overridden in order to make the majority happy. In many ways this Kantian idea underlies much human rights discourse today—the idea that there are universal duties we have to human beings as rational beings, as he put it. And this requires that we treat human beings with respect, regardless of who they are, or what they’re doing, or where they live.

NW: So what could be wrong with that? It sounds plausible that if you make human rights conditional then somebody somewhere is going to do a calculation and say: “Okay, in this case we can torture this person because there’s going to be some benefit from doing that.” By contrast, with Kantian rights you’re going to say: “No, whatever benefits might ensue, that’s just wrong, you should never torture anyone.”

MS: Well I do think that Kant has a powerful argument against the utilitarian way of thinking about morality and justice. The hard question arises when it comes to identifying what universal rights we have and what it means to respect them. Kant thought the reason duties and rights are categorical and universal is that we can arrive at them by abstracting from all of our particular interests, values, ends and purposes in life. That is, if we subtract all the differences between our interests, values and so on, what we’re left with are those interests, values etc that we all share. That’s what makes them universal: we arrive at them regardless of who in particular we are.

But that way of defining and deriving rights comes at a cost. It requires us for purposes of justice to abstract altogether from the particular conceptions of the good life that we have.

NW: Would you just spell out what that means? It’s quite abstract in itself—the idea that Kantian ethics ignores the complexity of what it means to be a human being in the context of a society with particular values…

MS: Let me give you a very concrete example. In Germany today, there is a widespread sense that this generation of Germans is morally responsible for righting the wrongs of their grandparents’ generation: the generation of the Nazis and the Holocaust. And in many ways contemporary Germans have lived up to this moral responsibility. But there’s an interesting philosophical question here. How is it possible for one generation to be morally responsible for the wrongs of their grandparents’ generation?

If, following Kant, you think that moral responsibility is the product of our will—‘I’m responsible for what I’ve done or chosen freely’—then it’s very difficult to make any sense of the idea that I have some special responsibility (that not everyone in the world has) to right the wrongs of my grandparents’ generation or my history or my country. And all of the debates we have in the world today about public apologies for past wrongs, or reparations for past injustices—those are very difficult to make sense of without some notion of solidarity and responsibility for the past, for a community that extends across time. And this is very difficult to reconcile with the Kantian idea that moral responsibility arises from the exercise of my will, my freedom of choice, my action.

NW: Surely questions of reparations are about people who have benefited from those crimes owing something back to the people or the descendents of the people who were victims? Rather than a sense of original sin or something like that, which means that what people in the past did is somehow my burden…

MS: I don’t agree. There may be some element in reparations of repaying ill-gotten gains. But collective responsibility goes far beyond trying to sort out precisely which of my benefits are ill-gotten gains traceable in some way to the wrongs of the past. Take the opposite idea, the idea of taking pride in my country’s past. Take me as an American. Can I take pride in the Declaration of Independence, or in the Constitution, or in Abraham Lincoln getting rid of slavery? Now, my forebears weren’t in the United States at that time, they were immigrants to the United States much later. Insofar as it’s possible to take pride in one’s country or one’s past or one’s people, it must also be possible to bear a moral burden for the wrongs of that people.

I’ll give you another example. I was the beneficiary of a scholarship funded by the great imperialist Cecil Rhodes. Generations of Rhodes Scholars have undertaken initiatives to support educational opportunities for black South Africans today. Now one could say, from a purely universalistic point of view, those scholarships for young black South Africans should be supported by everyone of good will, because where there is injustice, everyone as a human being has a responsibility to contribute to remedying injustice.

I would say that’s true. But it’s also true that I, and my fellow Rhodes Scholars, having had a special connection with this scholarship scheme, have a special responsibility, beyond the responsibility that decent men and women everywhere have to right an injustice. And that I think depends on a sense of membership of a particular community that makes a difference to one’s moral responsibilities.

NW: If I feel pride in my country that might just be my subjective feeling of identity with the country, but that’s different from objectively having some kind of direct link that makes me actually responsible for the things that have happened.

MS: Well that depends on how one understands community and individual identity. There is a view of individual identity that says my loyalties and my sense of belonging are all a matter of choice—I choose them and I can choose to renounce them. I think that’s too narrow an idea of identity, I’ve described that in the past as the ‘unencumbered self’— the idea that the only moral ties that matter are ones that I have incurred through an act of my own will. I think that that picture doesn’t enable us to make sense of a wide range of moral and political obligations that we commonly recognise and would find it very difficult to do without.

NW: So, if Kant can’t cope with that, is there a philosophical approach that’s in some ways superior to Kant in this respect?

MS: Well in many ways the criticism that I’ve just made of Kant was, broadly speaking, the criticism that Hegel made of Kant in the 19th Century. Hegel argued that Kant’s idea of morality was overly formal and abstract and not embedded in a way of life. But Hegel in many ways looked back even further, to the ancients and in particular to Aristotle, because in Aristotle we find the idea that human beings are by nature political beings, that we can’t live a full human life except as members of a political community. So this leads us to the third tradition of thinking about morality and justice: Aristotle’s idea that to think about justice, we have to think about the meaning of the good life and of virtue.

NW: So for Aristotle what counts? It’s not maximising pleasure, it’s not a good will, so what is it?

MS: He gives the example of flutes. Suppose we’re distributing flutes, who should get the best ones? His answer is: the best flute-players, the best musicians. You might think a utilitarian would agree—the best flute player will make the best music and that will make all of us better off, listening to good music. But no, that’s not Aristotle’s reason. His reason is ‘That’s what flutes are for—to be played well.’ His is a teleological reason. And it’s connected to the idea of honour. Part of the point of having musical performance is not just to generate good music, it’s to honour those who possess excellence as musicians.

Now, the flute-playing example might seem trivial, but Aristotle’s real point is to invite us to think about political offices and honours—how should power and authority be distributed in a political community? And his answer to that question follows the example of the flute. Those who possess the relevant virtues to the greatest extent should have the greatest political power and influence—which he says means those who are the greatest in civic virtue, those who are best at deliberating about the common good.

NW: I’m just thinking about the flute example. Obviously there’s an intuitive appeal to the idea that the greatest musician should have the greatest instrument. But at the same time you could think that the person who could afford to buy it should be the one who rightfully owns it. It’s not as if there’s a redistribution of goods according to talent. If there were, the world would be such a strange place, where only the people who had the most subtle taste buds are the only ones who are allowed to eat gourmet food and so on.

MS: Well let me see if I can make this more intuitively plausible, even taking the last example. If we saw a wealthy person at the finest restaurant with very subtle foods, a top Michelin-starred restaurant, and it were a person who had utterly no taste at all but just a lot of money to spend. Imagine he were ploughing through the food and the caviar and the fine wines as if it were McDonalds to him, we might say there was something wrong here, something misaligned.

Let me make it even more plausible. If we have a Stradivarius violin—the type that offers the richest, most complex sound of any violin ever produced—and it’s up for auction. One of the bidders is one of the world’s great violinists, say Isaac Stern or Itzhak Perlman. And the great violinist is bidding against a very wealthy collector who can’t play the violin at all but wants to display this Stradivarius violin on the wall over his fireplace as a prestige conversation piece. Suppose the wealthy collector wins the auction by outbidding the greatest violinist. Alright he’s got a right to the violin—he won the auction. In that sense he has a right to the violin because he paid the most for it. But wouldn’t you say there’s been some kind of injustice here? A great Stradivarius does not belong inert on the wall of a rich man’s house, it belongs in the hands of a great violinist who can play it as it was meant to be played.

NW: You wouldn’t want a law saying only great violinists could own Stradivariuses would you?

MS: I don’t think I’d make a law of that kind. But if it became a persisting problem that the great Stradivarius violins were being bought up by private collectors, I might favour some policies that would subsidise the purchase of Stradivarius violins to make them available to great violinists who would perform with them.

NW: So we’ve moved from utilitarianism, which emphasises maximising happiness, through to the Kantian approach which makes some things absolutely right or wrong and where people have inviolable rights, and then we’ve got to the Aristotelian approach which stresses that if we want to understand social practices and even objects, then we have to understand what they are for. And if we understand what it’s for, we might have to adjust society to allow that use for which it has been created to be realised better. It seems to me from the way you’ve been talking about this, you favour the third approach.

MS: I would put it this way: the third approach, this Aristotelian idea, is indispensable. We can’t make sense of our debates about justice without drawing, to some degree, on this third, Aristotelian tradition. And the reason I think this is important and worth emphasising is that most of our debates today involve contests between the first two approaches: the utilitarian idea and the rights idea. For example, debates about torture.

There are those who say yes you should torture a terror suspect to find the ticking bomb. That’s a utilitarian idea—numbers count, consequences count. As against Kantians who would say ‘No there are certain universal human rights and certain things are just wrong—torture is one of them, regardless of the consequences.’ So we’re very familiar with the debate between utilitarian and rights-oriented views. I think what we neglect often is the Aristotelian strand.

Take the torture debate. Some would say on utilitarian grounds that you should torture the terrorist suspect if you need the information desperately and you can’t get it any other way and many lives are at stake. But then put to the utilitarian this question: suppose the only way to get the information from the terrorist suspect is not to torture him but to torture his innocent 14 year old daughter. Would you do it? Even most utilitarians would hesitate. Why? Not because they don’t care about numbers, but because there’s a deep moral intuition that the girl is innocent, she doesn’t deserve to be tortured. Whereas a lot of people who would say torture in the original ticking time bomb situation is justified—many of them are resting that thought on the idea that ‘Well he’s a pretty bad guy anyhow, he desrrves rough treatment, he’s a terrorist.’ So this idea of who deserves what and why, and what does this have to do with the virtue of persons is at play often without our realising it, in many of the arguments we have. So what I’m trying to do is to show that in many of the debates we have about justice, not only utility and rights but also questions of desert, virtue and the common good as Aristotle understood them, are in play and indispensable today.

NW: Michael Sandel, thank you very much for your time.

MS: Thank you

This interview was conducted by Nigel Warburton as part of the ongoing series of podcasts, Philosophy Bites. To find more about Philosophy Bites and to listen to hundreds of other interviews with top philosophers, click here

Comments

Paul Gibbons

January 21, 2011 at 15:02

I wish, living in the US, we heard the word justice half as often as we hear the word freedom. Justice here almost always means retributive justice - and that ain't all there is to it. Sandel is a very fine and readable philosopher.
(comment via facebook)

Robin Ridge

January 24, 2011 at 23:36

Recent BBC program.
For there to be justice there needs to be emphathy. The example of the child and the shop keeper giving the correct change is emphathy in respect of the child by the shop keeper. The murderer asking after a friend example, requires a lie to the murderer through emphathy for the friend. Would you shoot down a airliner if you new it to be another 9/11. No, but I may attack it, the hi-jackers would be under no illussion that the goal is hopeless. My emphathy is with the people on the aircraft which face certain death at the desired end of the hijackers. An aircraft incapable of meeting the hijackers aims may do better - it couldn't do worse. Torture cannot be excused, but the threat of it on a guilty party to save the inocent represents no problem. The guilty expect punishment according to the crime. Deceit to meet a nobal end represents no problem at all. Its empathy in respect to the guilty. An inocent partly on the receiving end of such deceit could accept such a disception and excuse the mistake. Dog fighting is wrong, not because it sanctions violent behaviour but because it is an offence against the dogs. Emphathy for the dogs is no less valid than for the person, when it is clearly avoidable to do harm to the dog. To kill to protect yourself from mortal danger is quite different from murder in the more traditional sense, the murderer would quite understand the risk he was taking. As it is different to kill animals for food as opposed to sport. Emphathy for the quarry. My view on Justice which I do not think fits any I have heard in this debate.

Ben Toombs

January 25, 2011 at 13:34

Amartya Sen takes Aristotle's example of flutes a step further. In The Idea of Justice, he poses a neat question. Three children sit down in front of a flute made from silver. Who should own it - the one who plays the flute exceptionally well (and presumably already has at least one), the one who lives in poverty and has few toys, or the one who made it but cannot play it and has lots of toys already?
The first child equates to Aristotle's virtuosos flautist; the third perhaps to the rich collector. But what about the second child? Doesn't the existence of welfare states and other redistributive systems acknowledge that she has some moral claim to the flute as well?
It just goes to show what a broad term justice is, and how it can mean different things in different contexts.

David Llewellyn Foster

February 1, 2011 at 23:37

On the subject of justice: what about Dr Aafia Siddiqui? Or for that matter, what about Leonard Peltier? Justice is less about what people should receive from whomever, or whatever, presently serves as the ruling "authority" (ie the prevalent system) as what they are unequivocally entitled to as a fundamental human right. Fine words are always impressive, but actions reveal who we really are. There can be no justice in any state where raw power and material privilege over-ride the virtue and integrity of the sovereign individual.

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